Case No. 19-438 | 8th Cir.
October 14, 2020
Preview by Amy Orlov, Online Editor
This case concerns the burden of proof required for the cancellation of removal for certain permanent residents by the Attorney General under section 240A(b) of the Immigration and Nationality Act (otherwise known as a 42B cancellation). 8 U.S.C. §§ 1229b(a), (b)(1) (2018). This issue arose from the deportation and removal status of Clemente Avelino Pereida, a native and citizen of Mexico. Pereida entered the United States illegally in approximately 1995. Pereida was charged with attempting to use a fraudulent social security card to obtain employment in the state of Nebraska—a charge for which he pleaded no contest. In 2009, the U.S. Immigration and Customs Enforcement placed Pereida into removal proceedings and charged him with removability.
To establish eligibility for a 42B cancellation, an individual must show (1) that he or she has been physically present within the United States for at least ten years, (2) that he or she has been a person of good moral character during their time in the United States, (3) that removal would result in exceptional or extremely unusual hardship to a qualifying relative, and (4) that he or she has not been convicted of any offense on various enumerated grounds of inadmissibility. § 1229b(b) (2018). Pereida admitted that he was eligible for removability due to his illegal entry. However, he applied for cancellation of removal because of the “exceptional and extremely unusual hardship” his removal would cause his child, a U.S. citizen. Petition for a Writ of Certiorari at 2, 6, Pereida v. Barr (U.S. filed Sept. 30, 2019) (quoting § 1229b(b)(1)(D)).
The fourth prong of 42B cancellation eligibility provides that an undocumented immigrant is ineligible for cancellation of removal if he or she has been convicted of a crime “involving moral turpitude,” including an attempt to commit such a crime. 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018); see § 1229b(b)(1)(C). It is ambiguous whether Pereida’s crime in Nebraska qualifies as a crime involving moral turpitude, and the parties dispute whether that ambiguity in the underlying crime should mean he is ineligible for cancellation of removal.
The U.S. Court of Appeals for the Eighth Circuit found that it was not possible to determine which statutory subsection formed the basis for Pereida’s conviction. There is currently a circuit split concerning whether an ambiguous record and statutory basis for conviction can lead to a disqualifying offense barring cancellation of removal under the Immigration and Nationality Act. The Eighth Circuit, along with the Fourth, Sixth, and Tenth Circuits have held that the undocumented immigrant has the burden of proof to establish eligibility for cancellation of removal. These circuits have further held that an undocumented immigrant fails to meet this burden of proof when the criminal record is inconclusive. The First and Ninth Circuits have held that any ambiguity should be resolved in favor of the undocumented immigrant. Following its precedent, the Eighth Circuit found that Pereida did not meet the burden of proof and, thus, did not establish that he was eligible for cancellation of removal. The Government echoes the Eighth Circuit’s conclusion and argues that Pereida’s failure to prove his eligibility for cancellation of removal before the three tribunals below decides the case against his eligibility for cancellation of removal. Brief for Respondent at 18–29, Pereida v. Barr (U.S. filed Feb. 27, 2020).
In Pereida v. Barr, the Supreme Court will be asked to resolve this circuit split and determine whether a criminal conviction can bar a noncitizen from seeking cancellation of removal when the record of conviction is ambiguous. In deciding this case, the Court has the opportunity to implement greater uniformity in the country’s immigration laws. Furthermore, this case will have consequences for many undocumented immigrants facing an increasing threat of deportation under similar circumstances as Pereida.